Worker not penalized for failure to use safety equipment

In Kentucky, even where a safety rule exists, if the employer fails to enforce the rule, a worker cannot be penalized for failing to follow it.

Case name: Louisville Metro Government v. Hunter, No. 2010-CA-002135-WC (Ky. Ct. App. 10/21/11, unpublished).

Ruling: In an unpublished decision, the Kentucky Court of Appeals held that no penalties would be assessed against a worker because he did not intentionally fail to use a safety device or fail to obey the employer's safety rule.

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What it means: In Kentucky, even where a safety rule exists, if the employer fails to enforce the rule, a worker cannot be penalized for failing to follow it.

Summary: A worker fell 17 feet from the bucket of a bucket truck while hanging banners. The worker asked the driver of the truck to move the vehicle so he could complete his task. While the truck was in motion and the boom was partially extended, it struck the bottom of a pedway and the worker fell. The worker was not wearing a required safety harness and lanyard. He subsequently died from a closed head wound. The employer was cited for "serious" safety violations. The Kentucky Court of Appeals held that no penalties would be assessed against the worker in the calculation of his compensation.

The court said that the facts did not support a finding that the worker intentionally failed to use a safety harness and lanyard while in the bucket truck or to obey the employer's safety rule. The employer had to prove that specific safety training had been provided to the worker, safety equipment had been made available to him, and that the use of safety equipment was routinely enforced. An equipment training/safety officer explained that any training the worker received on the use of bucket trucks, harnesses, and lanyards was incidental to training that focused on chainsaws and tree trimming.

The officer admitted that he did not know whether the worker was aware that safety devices were available, that he was supposed to take them to a job site when using a bucket truck, and that a bucket truck was not supposed to be moved with a person in the bucket. The court said that it could not impose a safety penalty on the worker when proof of an intentional failure was required.

Read more at the WorkersComp Forum homepage.

December 8, 2011

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